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CASE NUMBER: 599471- NYC: 248153
FINDINGS OF FACT AND DECISION
Case Number: 248153
Student’s Name: STUDENT
School District: SCHOOL DISTRICT
Impartial Hearing Officer: Michele Host
Date of Filing: May 10, 2023
Hearing Requested by: PARENT
Date of Hearing: July 19, 2023
Record Close Date: July 31, 2023
Time Sensitive: No
Date of Decision: August 1, 2023
NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 19, 2023:
REDACTED (Parents’ Counsel) — Student
REDACTED (Mother) — Student
REDACTED (DOE Counsel) — District
INTRODUCTION AND PROCEDURAL HISTORY
This matter concerns the Student, a REDACTED-year-old school student classified as a student with a disability under the Individuals with Disabilities Education Act (“IDEA”). The Student’s eligibility for special education supports and services is not in dispute.
This matter comes before me on the Parents’ due process complaints, which have been consolidated. The Parents’ first due process complaint was filed on May 10, 2023, under case number 248153. The first due process complaint sought a pendency order based on the Student’s Individualized Education Services Program (“IESP”) dated May 25, 2021, which recommended Special Education Teacher Support Services (“SETSS”), direct service, group service, in Yiddish, three times per week. (P-A, p. 2) The Parents also sought an order directing the DOE to fund the program outlined in the IESP at the provider’s prevailing rate and provide a bank of compensatory SETSS for the 2022-2023 school year, among other relief. (P-A, pp. 2-3)
The Parents subsequently filed a second due process complaint on May 25, 2023, under case number 248561, and sought consolidation of the two due process complaints, which I granted on May 31, 2023. (P-F) The second due process complaint sought an Independent Educational Evaluation (“IEE”) for the Student at public expense in the form of an independent neuropsychological evaluation. (P-F)
I held a pre-hearing conference in this matter on June 14, 2023, and I conducted a pendency hearing on June 30, 2023. On July 11, 2023, I granted the Student pendency based on the Student’s IESP dated May 25, 2021.
The impartial hearing took place on July 19, 2023. The DOE entered exhibits 4, 5, 7, and 8 into the record; Parents’ Counsel offered proposed exhibits A through F.[1] The DOE objected to the introduction of the Parents’ exhibits because the timing of the Parents’ disclosures violated the five-day rule. 8 N.Y.C.R.R. § 200.5(j)(3(xii). Admittedly, the Parents first submitted their disclosures on July 14, 2023, over e-mail, and provided an updated set of disclosures on the morning of the hearing. Nevertheless, I overruled the DOE’s objection. Parents’ A, B, and C were in evidence before the due process hearing as a result of the pendency hearing in this matter, and Parents’ E and F were in the DOE’s possession, which left only the Mother’s twopage affidavit. The DOE had been provided with that document prior to the day of hearing, it just had not been signed and notarized—which is why the Parents submitted an updated disclosure. (Tr. 7-8) As the State Review Office has written, “courts have not enforced absolute adherence to the five-day rule for disclosure but have upheld the discretion of administrative hearing officers who consider factors such as the conditions resulting in the untimely disclosure, the need for a minimally adequate record upon which to base a decision, the effect upon the parties’ respective right to due process, and the effect upon the timely, efficient, and fair conduct of the proceeding.” See SRO No. 22-105, p. 18. In this case, the DOE suffered no prejudice from the Parents’ updated disclosure on the morning of the hearing, and the Parents’ documents were necessary to create an adequate record. Id. at pp. 18-19.
The DOE waived its opening statement, and Parents’ Counsel made an opening statement. (Tr. 12-15) The DOE then rested without calling any witnesses. (Tr. 9, 15) The DOE cross-examined the Mother, who testified via affidavit, and I asked the Mother a clarifying question. (Tr. 19-30) The Parents then rested, and the DOE waived its closing argument. (Tr.
30) Parents’ Counsel made a closing argument. (Tr. 31) The record in this case closed on July 31, 2023. A list of the documentary evidence in this proceeding is appended to this decision.
JURISDICTION
The due process hearing was held, and a decision in this matter is being rendered, pursuant to the Individuals with Disabilities Education Act (hereinafter, “IDEA”), 20 U.S.C. § 1400 et seq., and its implementing regulations, 34 C.F.R. § 300 et seq., and the New York State Education Law, Educ. Law Art 89 § 4404 et seq., and its implementing regulations, 8 N.Y.C.R.R. Part 200.
FINDINGS OF FACT
After considering all the evidence and the arguments of the Parents, my findings of fact are as follows: It is uncontested that the Student and Parents reside in New York City and that the Student attended a private school (“Private School”) for the 2022-2023 school year. (P-B, p. 2; D, ¶ 1) It is further uncontested that the DOE convened an IESP meeting for the Student on May 25, 2021, that classified the Student as a Student with a Learning Disability. (P-B)
On May 10, 2023, the Mother sent a letter to the DOE stating that she consented to the services recommended on the May 25, 2021 IESP but that she had no way of implementing the recommendations. (P-C) The Mother wrote that in spite of her best efforts she was “unable to locate providers for the SETSS at the DOE’s standard rate.” (P-C, p. 2) The Parents filed their first due process complaint on the same day that Mother sent the DOE her letter. (P-A; C)
On May 15, 2023, the Mother sent a request for an IEE to the DOE. (P-D, ¶¶ 6-9; E) The Mother referenced the Student’s IESP dated May 25, 2021, and stated that the Parents disagreed with the IEP team’s assessment of the Student and the evaluations used during the IEP meeting. (P-E) The Mother wrote that the Parents were “requesting that you authorize an independent neuropsychological evaluation at the public expense for [the Student].” (P-E) The DOE prepared a Prior Written Notice document dated May 18, 2023, acknowledging the Parents’ request for a reevaluation of the Student and stating that the DOE had determined a neuropsychological assessment of the Student was necessary. (D-8) An administrator working for Parents’ Counsel then emailed back and forth with a DOE Supervisor of Psychologists regarding the DOE’s process for funding independent evaluations, with the email chain ending on May 24, 2023. (P-E)
The Mother also testified regarding her disagreement with the Student’s evaluations. In her affidavit, the Mother testified that the Committee on Special Education (“CSE”) evaluated the Student on April 22, 2021, and that “the assessments conducted were insufficient in capturing my child’s unique needs and abilities, resulting in an inaccurate representation of their educational requirements.” (P-D, ¶ 5) The Mother also testified in her affidavit that the evaluation process seemed “rushed” and lacked a “comprehensive approach.” (Id.) On cross-examination, the Mother testified that she and the Father watched the Student’s evaluation, and she did not think the evaluators understood the Student’s way of “looking at things, [the Student’s] way of seeing things and [the Student’s] way of taking it into [the Student’s] mind.” (Tr. 21) The Mother testified that without a proper evaluation, it is difficult for her to know what services the Student truly needs. (Tr. 29-30)
The DOE entered its April 22, 2021 bilingual Yiddish psychoeducational evaluation of the Student into evidence. (D-5) The evaluator observed the Student and conducted several tests, namely, Draw A Person, Bender Gestalt, Wechsler Intelligence Scale for Children-V, and Wechsler Individual Achievement Test-3. The Student’s test results were wide ranging. For example, the Student obtained a High Average result in Fluid Reasoning, but a Very Low score in Reading Comprehension. (D-5, pp. 3-4) The psychoeducational evaluation contains no recommendations. Instead, the evaluation states, “[a]ll service recommendations are to be made by the Committee on Special Education.” (D-5, p. 4)
The Mother testified that, to the best of her knowledge, the DOE has not consented to her request for an IEE or filed its own due process complaint. (P-D, ¶ 8)
CONCLUSIONS OF LAW AND ANALYSIS
Burden
Except for in circumstances not applicable here, the burden of proof is on the school district during an impartial hearing. Educ. Law § 4404(1)(c); see R.E. v. New York City Dep't of Educ., 694 F.3d 167, 184-85 (2d Cir. 2012); C.F. v. New York City Dep’t of Educ., 746 F.3d 68, 76 (2d Cir. 2014).
FAPE
The IDEA provides that children with disabilities are entitled to a FAPE. 20 U.S.C. § 1400 (d)(1)(A). A FAPE consists of specialized education and related services designed to meet a student’s unique needs, provided in conformity with a comprehensive written Individualized Education Program (“IEP”). 20 U.S.C. § 1401(9). A school district has offered a student a FAPE when: (a) the board of education complies with the procedural requirements set forth in the IDEA; and (b) the IEP is developed through the IDEA’s procedures and is reasonably calculated to enable the student to receive educational benefits. Bd. of Educ. of the Hendrick Hudson Cent.
Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982). To meet its substantive FAPE obligations, a district must offer a student an IEP that is “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” Endrew F. v. Douglas County Sch. Dist., 137 S.Ct. 988, 999 (2017); see, e.g., 20 U.S.C. § 1412(a)(l)(A); Educ. Law §§ 4402(2)(a), (b)(2).
Dual Enrollment
The IDEA confers no individual entitlement to special education or related services upon students who are enrolled by their parents in nonpublic schools. See 34 C.F.R. § 300.137(a). Under State law, however, parents who have privately enrolled their child in a nonpublic school may seek educational “services” for their child with a disability by filing a request in the district where the nonpublic school is located on or before the first day of June preceding the school year for which the request for services is made. Educ. Law § 3602-c(2). Then, the district of location’s CSE must review the request and “develop an [IESP] for the student based on the student’s individual needs in the same manner and with the same contents as an [IEP].” Educ. Law§ 3602-c(2)(b)(l).
The Mother alleges and credibly testified that the DOE failed to implement the Student’s SETSS mandated by the May 25, 2021 IESP, which required the Parents to try to locate providers independently. (P-D, ¶¶ 3, 9, 10) The Mother testified at hearing that she and the Father tried to locate a SETSS provider and were unsuccessful. (Tr. 23-25)
The implementation of IESP services falls on the district of location insofar as “boards of education of all school districts of the state shall furnish services to students who are residents of this state and who attend nonpublic schools located in such school districts, upon the written request of the parent.” Educ. Law § 3602-c(2)(a). The CSE must “assure that special education programs and services are made available to students with disabilities attending nonpublic schools located within the school district on an equitable basis, as compared to special education programs and services provided to other students with disabilities attending public or nonpublic schools located within the school district.” Educ. Law § 3602-c(2)(b)(1). Additionally, section 3602-c provides that a parent may seek review of the recommendation of the CSE pursuant to the impartial hearing and State-level review procedures pursuant to Education Law § 4404.
A district cannot be absolved of its statutory obligation to implement services for the student simply by being inactive in implementing the mandated services. In this case, the DOE had the obligation to provide services to the Student in conformity with the May 25, 2021 IESP.
Educ. Law § 3602-c(2)(a), (b)(l). By failing to provide the Student with the Student’s mandated SETSS, the DOE failed to provide the Student with services on an equitable basis as compared to other students with disabilities attending public or nonpublic schools located within the school district and failed to sustain its burden under the Education Law to demonstrate that it provided the Student with a FAPE for the 2022-2023 school year. Accordingly, since the Student was mandated to receive three periods of bilingual Yiddish SETSS per week during the 2022-2023 school year and the Student did not receive SETSS until May 10, 2023, pursuant to pendency, I will order the Student to receive 96 periods of SETSS (32 weeks x 3 periods per week) at a reasonable market rate. Independent Educational Evaluations
An Independent Educational Evaluation (“IEE”) is “an individual evaluation of a student with a disability or a student thought to have a disability, conducted by a qualified examiner who is not employed by the public agency responsible for the education of the student.” 8 N.Y.C.R.R. § 200.1(z).
The IDEA and State and federal regulations allow a parent to request an IEE at public expense if the parent disagrees with a school district’s evaluation. 20 U.S.C. § 1415 (b)(1); 34 C.F.R. § 300.502(b); 8 N.Y.C.R.R. § 200.5(g)(1); D.S. by M.S. and R.S. v. Trumbull Bd. of Educ., 975 F.3d 152, 158 (2d Cir. 2020) (“[a] parent is entitled to a publicly funded IEE if the parent disagrees with an evaluation obtained by the public agency”) (internal quotation marks and citations omitted). In Shaffer v. Weast, the Supreme Court explained the role an IEE plays in parental participation and the IDEA’s regulatory scheme as follows: “[an IEE] ensures parents access to an expert who can evaluate all the materials that the school must make available, and who can give an independent opinion. They are not left to challenge the government without a realistic opportunity to access the necessary evidence, or without an expert with the firepower to match the opposition.” 546 U.S. 49, 60-61 (2005).
If a parent requests an IEE, the school district must provide the parent with information about where they can obtain an IEE. 8 N.Y.C.R.R. § 200.5(g)(1)(i). A school district can set criteria regarding the IEE, including the qualifications of the examiner, but the district’s criteria must be the same as the criteria it uses for its own evaluations, and the district cannot impose additional conditions or timelines related to the IEE. 34 C.F.R. § 300.502(e)(1); 8 N.Y.C.R.R. § 200.5(g)(1)(ii); Letter to Kirby, 213 IDELR 233 (OSERS 1989). For example, a school district may not compel the use of a particular evaluator or its own chosen evaluator for an IEE (Board of Education of the County of Nicholas v. H.A., 445 F. App’x 660 (4th Cir. 2011)), nor can it deny an IEE at public expense based solely on financial cost. Letter to Individual (Redacted) (OSERS,
Oct. 9, 2002). A parent’s right to an IEE at public expense may not be conditioned on the school district’s ability to first conduct its own assessment before granting the parent’s request for an independent IEE. Letter to Carroll, 68 IDELR 279 (OSEP 2016). Finally, while the school district may “ask for the parent’s reason why he or she objects to the public evaluation,” the district cannot require an explanation or delay providing the IEE until the parent provides an explanation. 8 N.Y.C.R.R. § 200.5(g)(1)(iii).
When a parent disagrees with a school district’s evaluation and requests an IEE at public expense, the school district “must, without unnecessary delay,” either (1) ensure that an IEE is provided at public expense; or (2) initiate an impartial hearing to establish that its evaluation is appropriate or that the evaluation obtained by the parent does not meet the school district criteria. 34 C.F.R. § 300.502(b)(2)(i)-(ii); 8 N.Y.C.R.R. § 200.5(g)(1)(iv) (emphasis added).
IEE for District’s Failure to Conduct an Evaluation in an Area of Need
A parent is entitled to an IEE when the district does not conduct a sufficiently comprehensive evaluation or fails to test the student in an area of need. D.S. v. Trumbull Bd. of Educ., 975 F.3d 152, 165 (2d Cir. 2020). In D.S., the court stated that, “[n]othing in the statute or regulations suggests that a parent cannot challenge an evaluation on the ground that it was too limited. To the contrary, because the IDEA requires an evaluation to be comprehensive, one would expect that a parent is free to disagree with an evaluation based on its deficient scope.” Id. The U.S. Department of Education's Office of Special Education Programs (“OSEP”), has similarly stated that when a parent disagrees with an evaluation because a child was not assessed in a particular area, “the parent has the right to request an IEE to assess the child in that area to determine whether the child has a disability and the nature and extent of the special education and related services that child needs.” Letter to Baus, 65 IDELR 81 (OSEP 2015); see also Letter to Carroll, 68 IDELR 279 (OSEP 2016). Moreover, under New York State regulations, an IHO may order an independent evaluation under their own authority. 8 N.Y.C.R.R. § 200.5(j)(3)(viii); 8 N.Y.C.R.R. § 200.5(g)(2); see also Luo v. Roberts, 2016 U.S. Dist. LEXIS 148908 (E.D. Pa.
Oct. 27, 2016) (noting that an IHO “is permitted, and in some cases required, to order an [IEE] at public expense”), on reconsideration in part, Luo v. Owen J. Sch. Dist., 2016 LEXIS 164035 (E.D. Pa. Nov. 28, 2016), aff’d, 2018 U.S. App. LEXIS 15628 (3d Cir. June 11, 2018).
In this case, the DOE provided no evidence suggesting that it initiated an impartial hearing to establish that its most recent evaluation of the Student was appropriate. The DOE did provide a Prior Written Notice document dated May 18, 2023, acknowledging the Parents’ request for a reevaluation of the Student and stating that the DOE determined a neuropsychological assessment of the Student was necessary, but the DOE provided no other evidence suggesting that it took the necessary action to ensure that the Parents’ requested IEE was provided at public expense. (D-8) The Mother testified that the DOE has neither initiated a due process hearing nor provided the Student with an IEE. (P-D, ¶¶ 7-8) The Parents are therefore entitled to have the IEE conducted at public expense by a duly qualified evaluator selected by the Parents, at a cost not to exceed $6,000.[2] (Tr. 14)
I have reviewed the parties’ remaining contentions and find them to be either unnecessary to this decision, without merit, beyond my jurisdiction, or without sufficient basis in the record for a finding. Accordingly, any relief not specifically discussed in this decision is denied, and all the Parents’ remaining claims not discussed herein are dismissed with prejudice.
ORDER
Based above the above findings of fact, it is hereby:
1. ORDERED, that the DOE shall fund, as compensatory relief, 96 hours of bilingual Yiddish SETSS, by a provider of the Parents’ choosing, at a reasonable market rate, to be used within two years of this order; it is further
2. ORDERED, that the DOE shall fund an independent, comprehensive, bilingual Yiddish neuropsychological evaluation of the Student by a licensed neuropsychologist of the Parents’ choice, at a cost not to exceed $6,000.
SO ORDERED
DATED: August 1, 2023
Impartial Hearing Officer
Michele Host
NOTICE OF RIGHT TO APPEAL
Within 40 days of the date of this decision, the parent and/or the Public School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under section 4404 of the Education Law and the Individuals with Disabilities Education Act.
If either party plans to appeal the decision, a notice of intention to seek review shall be personally served upon the opposing party no later than 25 days after the date of the decision sought to be reviewed.
An appealing party’s request for review shall be personally served upon the opposing party within 40 days from the date of the decision sought to be reviewed. An appealing party shall file the notice of intention to seek review, notice of request for review, request for review, and proof of service with the Office of State Review of the State Education Department within two days after service of the request for review is complete. The rules of procedure for appeals before an SRO are found in Part 279 of the Regulations of the Commissioner of Education. A copy of the rules in Part 279 and model forms are available at: http://www.sro.nysed.gov.
APPENDIX A – ADMITTED EXHIBITS
DISTRICT’S EVIDENCE
4. Prior Written Notice 5/21/2021 (7 pages; DOE)
5. Psychoeducational Evaluation Report 4/22/2021 (6 pages; DOE)
7. Request for Reevaluation 5/18/2023 (2 pages; DOE)
8. Prior Written Notice 5/18/2023 (5 pages; DOE)
PARENTS’ EVIDENCE
Exhibit Title Date Pages A DPC 5/10/2023 5 B IESP 5/25/2021 14 C TDN 5/10/2023 2 D Affidavit of Parent 7/18/2023 2 E Request for Independent Evaluations 5/15/2023 8 F DPC (Case No. 248561) 5/25/2023 4
IMPARTIAL HEARING OFFICER’S EVIDENCE
Exhibit Title Date Pages
NONE
Footnotes
[1] The DOE originally offered proposed exhibits 1-7, but withdrew proposed exhibits 1, 2, 3, and 6 because they were duplicative of the Parent’s exhibits. The DOE’s exhibits are cited as “D” followed by a number, and the Parents’ exhibits are cited as “P” followed by a letter.
[2] The Parents provided a set of emails between an administrator at Parents’ Counsel’s firm and the DOE suggesting that the DOE might have been willing to fund an IEE by the Parents’ suggested provider, but the final email in the chain is an email from a DOE Supervisor of Psychologists stating that the DOE would need a reason before it could authorize the provider’s rate. (P-E) Although the email does not explicitly deny the requested IEE, it is worth noting that a district cannot deny an IEE at public expense based on financial cost. Letter to Individual (Redacted) (OSERS, Oct. 9, 2002). Ultimately, the DOE did not address the email chain during the due process hearing, and since it is clear that the DOE neither filed a due process complaint of its own nor provided the Student with an IEE, there is no reason to interpret the email chain as an impediment to the Parents’ request for an IEE in this matter.